On Wednesday, EFF argued in federal court against the government's motion to dismiss Jewel v. NSA, EFF's case seeking to end the dragnet government surveillance of millions of ordinary Americans. EFF lawyers told federal judge Vaughn Walker that the lawsuit cannot be dismissed based on the government's blanket secrecy assertion, as made clear in previous court decisions concerning NSA spying and the CIA's special rendition program, and that the government is not immune against suit for violating federal wiretapping statutes.

The San Francisco Chronicle's coverage of the hearing made note of the Obama administration's defense of the Bush program:

President Obama is adamant about maintaining the secrecy of a wiretapping program authorized by George W. Bush, an administration lawyer told a federal judge in San Francisco on Wednesday.

Obama "does not intend to use the state-secrets privilege to cover up illegal activities," said Justice Department attorney Anthony Coppolino. But in exceptional circumstances, he said, the president will invoke secrecy to protect "the sources and methods of detecting terrorist attacks ... the crown jewel of the United States national security administration."

Coppolino said the administration will cite national security in seeking dismissal of a lawsuit by telephone customers accusing the government of illegally intercepting phone calls and obtaining phone company records.

Wired's Threat Level blog featured this exchange between Judge Walker and Mr. Coppolino:

“What has changed between now and 2006 that suggests I should take a different view of this argument?” Walker asked Coppolino about the government’s state secrets assertion.

Coppolino said Walker should end the case now before it gets to the discovery stage, when the EFF would demand the government turn over classified information.

“The discovery they seek goes right to the heart of the state secrets privilege,” Coppolino responded. “They want to know, is the government engaged in a content dragnet, a communications dragnet.”

PC World covered the hearing as well, noting the government's extreme claims of immunity:

On Wednesday, DoJ lawyer Anthony Coppolino argued that federal laws allow people to sue government employees who leak information, but do not let them sue the government itself. Coppolino added that litigating such cases could put state secrets at risk by exposing details of the government's anti-terrorist programs.

In closing, EFF Legal Director Cindy Cohn reminded the judge that the principal of judicial oversight is at stake in the motion to dismiss: "What the government is arguing is that the president decides what is legal or not." Judge Walker will consider the arguments and deliver a ruling some time in the coming months.

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